super lienSometimes, when a tax sale purchaser gives notice of the sale to another creditor which holds a lien, that creditor will pay off the tax sale purchaser, to avoid having their lien “wiped out” by barment.

What this does is take the tax sale purchaser our of the equation, and restores title to the property in the owner.

However, the creditor who redeems is said to then have a “super-lien” for the amount that they redeemed.

The Georgia Supreme Court has held:

If a creditor of the original taxpayer redeems the property, the amount paid by the redeeming creditor becomes a first lien on the property. The redeeming creditor then has first priority to repayment-a “super-lien” for the redemption price-and may proceed to foreclose against the property based upon that lien.

Nat’l Tax Funding, L.P. v. Harpagon Co., LLC, 277 Ga. 41, 42-43, 586 S.E.2d 235, 238 (2003) (emphasis added).

The redeeming creditor may satisfy some or all of the super-lien from any excess funds from the tax sale which are still being held by the Sheriff.  See Wester v. United Capital Fin. of Atlanta, LLC, 282 Ga. App. 392, 394, 638 S.E.2d 779, 781 (2006).

Or, the creditor can foreclose their super-lien, taking ownership from the owner, and wiping out other lien holders’ interests.  See Nat’l Tax Funding, L.P., supra.

An owner should not assume they will necessarily have 12 months in order to avoid losing their property.  A lien-creditor can redeem from the tax sale purchaser at any time, even 1 day after the tax sale, and then immediately seek to foreclose their super-lien.  The 12-month barment rules do not apply in this context.  Thus, in as little as 1-2 months, the owner might lose their property for good.

Therefore, it is important to respond promptly, and consult a competent tax sale attorney.

The full text of the Nat’l Tax Funding, L.P. v. Harpagon Co., LLC decision follows:
Read more on Creditor who redeems obtains “super-lien”…

Filed under Redemption by on #

stack of newspapersAfter purchasing property at a tax sale, the purchaser may seek to bar the owner from being able redeem the property.

Generally, the tax sale purchaser must send a written notice to the owner in the form provided by O.C.G.A. 48-4-46.

There is a provision for giving this written notice by “publication,” which means running an advertisement in the public notices section of the newspaper.

However, as a matter of fairness (and Constitutional due process), it is often not sufficient to rely solely upon publishing notices in a newspaper, because it is argued that such a notice is unlikely to actually inform the owner that their right to redeem is being barred.  This makes sense.  Do you know anyone who regularly reads the public notices section of a newspaper, with all of its tiny type?  Indeed, fewer and fewer people subscribe to a newspaper at all any more.

With regards to a barment notice specifically, the Georgia Supreme Court has held that “If the name and address of an interested party can be reasonably ascertained, notice of a tax sale by publication does not meet the requirements of due process.” Hamilton v. Renewed Hope, Inc., 277 Ga. 465, 466, 589 S.E.2d 81, 83 (2003).  It is not necessary that actual notice be received by the owner, but such notice should be attempted using “reasonable diligence.” Id.

What is the “reasonable diligence” required in your case?  This will depend upon upon the situation, so it is advisable to consult a competent attorney to provide advice regarding your particular circumstances.

 

A full copy of this Court decision follows:
Read more on Barment Notice by publication alone is generally insufficient…

Filed under Barment by on #

Tax Sale

Purchasers at tax sales are often worried about whether issues out of their control can negatively impact their investment.

For example, what if the owner claims that they received insufficient notice in advance of sale, or if proper notice simply cannot be proven later?

Generally speaking, the tax sale purchaser can rest easy on this issue.

The Georgia Supreme Court has held that “the rule in this state that defects in following the notice provisions of the tax sale statute may give an injured party a claim for damages, but will not render the tax sale or the deed therefrom void.”  Davis v. Harpagon Co., LLC, 281 Ga. 250, 252, 637 S.E.2d 1, 3 (2006).

Of course, every situation is unique, so you should consult an attorney about your case.

 

A full copy of this Court decision follows:
Read more on Defective notice prior to tax sale does not void the sale or deed…

Filed under Tax Sale by on #

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The Georgia Court of Appeals, in the case of Dillon v. Reid, held that a Georgia trial court is not preempted from issuing an injunction to require a lot owner to move a dock, although the Corps of Engineers manages the shoreline of Lake Lanier and issues dock permits.

In this case, Danny Reid sued his neighbors, Michael and Jennifer Dillon.  Reid wanted to seek a permit for a dock.  But, because his neighbors on the left and right (respectively, the Dillons, and the owner of Lot 10) had placed their docks too close together, Reid would not be eligible.  So Reid sued the Dillons, seeking an injunction requiring that the Dillons move their dock at least 132 feet away from the dock on Lot 10.  If an injunction did not issue quickly, then Reid would miss the window of opportunity to apply for a dock permit.

Judge Brenda L. Weaver

Forsyth Superior Court Judge Brenda S. Weaver held an evidentiary hearing, and found that the placement of the Dillons’ dock was in violation of an earlier Sale Agreement, found that Reid was a third party beneficiary of the Sale Agreement, and ordered that the Dillons move their dock.

 

The full text of the decision follows:

Read more on Ga Court of Appeals Affirms Injunction Requiring Dock on Lake Lanier Be Moved To Permit Neighbor To Seek Dock Permit…

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In the case of Southeast Culvert Inc. v. Hardin Bros. LLC, the Georgia Court of Appeals held that, although Hardin filed its Notice of Commencement more than 15 days of commencing work [see OCGA 44-14-361.5(b)], the timely filing of this Notice was not a condition to Southeast Culvert Inc.’s obligation to provide a Notice to Contractor.

Additionally, the Court held that there was no issue as to whether the site address listed on the Notice of Commencement was incorrect or fatally deficient.  The Notice of Commencement listed a property address of 795 Union Hill Road, which was corroborated by two affidavits which attested that this was the correct property address.  The mere fact that two pre-construction forms listed an address of 905 Union Hill Road did not create an issue, especially where Southwest did not deliver materials to a different location.

Accordingly, when Southeast sought to foreclose on their materialman’s lien, the Court of Appeals held that summary judgment in favor of Hardin was demanded.

 

The full text of the decision follows:
Read more on Ga.App.: To Enforce Materialman’s Lien, Notice to Contractor Required Despite Late-Filed Notice of Commencement…

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